[Cite as State v. Brummett,
2025-Ohio-5307.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
State of Ohio, :
:
Plaintiff-Appellee, : Case No. 24CA15
:
v. :
: DECISION AND
Rufus Lee Brummett, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Christopher Bazeley, Cincinnati, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecutor, and Adam J. King, Highland
County Assistant Prosecutor, Hillsboro, Ohio, for appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Appellant, Rufus Brummett, appeals the judgment of the Highland
County Court of Common Pleas convicting him of three counts of rape, all first-
degree felonies in violation of R.C. 2907.02(A)(1)(b). On appeal, appellant
contends 1) that his conviction for count three of rape was not supported by legally
sufficient evidence or the weight of the evidence; and 2) that the trial court erred
when it imposed consecutive sentences. Because we conclude appellant’s
conviction for rape under count three was supported by sufficient evidence and
was not against the manifest weight of the evidence, appellant’s first assignment of
Highland App. No. 24CA15 2
error is overruled. However, because we conclude the trial court erred in its
imposition of consecutive sentences, we find merit to the argument raised under
appellant’s second assignment of error. Accordingly, the judgment of the trial
court is affirmed in part, vacated in part, and remanded for resentencing.
FACTS
{¶2} On May 7, 2024, appellant was indicted on three counts of rape, all
first-degree felonies in violation of R.C. 2907.02(A)(1)(b). The first count alleged
the victim was less than 10 years old at the time and that the offense occurred
between April 9, 2019, and April 8, 2020. The second count alleged that the
victim was less than 13 years old at the time and that the offense occurred between
April 9, 2020, and April 8, 2021. The third count alleged that the victim was less
than 13 at the time and that the offense occurred between April 9, 2021, and April
8, 2022.
{¶3} The indictments stemmed from a report made to law enforcement by
M.W., in whose care the minor child victim, C.W., was placed after she had been
removed from the home of her biological mother. Appellant lived in the home
with M.W., C.W., and several other children during the times contained in the
indictment and appears to have been related to the child in some manner which is
unclear, at times being referred to as a cousin and at other times being referred to
as an uncle. The record reflects that at all times herein, the parties lived in a two-
Highland App. No. 24CA15 3
story, three-bedroom house where M.W. and her husband slept downstairs and the
rest of the residents slept upstairs. Appellant shared a bedroom upstairs with the
victim’s older brother and sister, and the victim slept in the other bedroom upstairs,
which she shared with her younger sister.
{¶4} After the report was made, appellant was interviewed by law
enforcement. Upon being confronted with the allegations, appellant made several
incriminating statements. Further, after the report was made, the victim was taken
to The Mayerson Center at Cincinnati Children’s Hospital where she was
interviewed by forensic interviewer, Cecilla Hicks.
{¶5} As the matter proceeded towards trial, appellant requested the State
provide a bill of particulars. The State filed a Notice of Service of Bill of
Particulars on June 5, 2024, however, the actual bill of particulars that was
provided to the defense was not filed with the clerk and is not part of the record.
Thereafter, the matter was tried to a jury on September 30, 2024.
{¶6} The State introduced five witnesses. The first witness was the victim,
C.W., who testified regarding 4 or 5 specific incidents that occurred with appellant
over a period of years when she was between the ages of 9 and 11. In order to
establish timeframes, C.W. stated either her age, the grade she was in, or the
teacher she had at the time of each incident. She testified that the first incident
occurred when she was 9 years old, was in second grade, and was in Mr.
Highland App. No. 24CA15 4
Schillings’ class. She testified that she had gone to appellant’s bedroom and
climbed into bed with him because she was scared. She testified that appellant
took her clothes off of her and used his hands to touch her “down where her legs
were.” She further testified that during that incident, or possibly during another
incident when she was still in Mr. Schillings’ class, that appellant used his mouth
and his fingers on her. She stated “[h]e would normally use his tongue and his
mouth on me[]” explaining that he would put his tongue and fingers “down there.”
She stated that he sometimes put his fingers inside her and that it hurt her when he
did that.
{¶7} She testified that the next incident occurred when she was ten years old
and was in Mrs. Coil’s class. She explained that she was sleeping on appellant’s
bedroom floor and that appellant got on the floor with her, took her clothes off, and
“used his hands again.” She explained that he was using his hands and “touching
her parts.” She explained that “her parts” were “down here.” She stated that
although his fingers did not go inside of her during that incident, “[h]e touched
[her] with his parts” and also touched her with his mouth “down here.” She
testified that he also used his tongue.
{¶8} She testified that the next incident occurred when she was still in Mrs.
Coil’s class. She explained that she was sleeping on the floor under her loft bed
when appellant came into her room and pulled her by her legs out from under the
Highland App. No. 24CA15 5
bed. She testified that he took her clothes off, “use[d] his hands … on [her]
part[,]” and that he was “touching [her] with his fingers.” She testified that she
remembered that it hurt and stated that it usually hurt when he put his fingers
inside her.
{¶9} The last incident she testified about took place when she was in fifth
grade in Mrs. Pollard’s class. She testified that she had fallen asleep in appellant’s
bedroom along with all of her other siblings after they had watched a movie. She
testified that appellant got on the floor with her and tried to put “his part,” which
she agreed was “the part that he pees from,” close to her face. She testified that he
was touching where her chest was and that as she was struggling against him to get
up, she could feel the “part where he pees from” “like on [her] leg and stomach.”
Her testimony also indicated that appellant ejaculated onto her, although she did
not understand what that was until she asked her brother later. When asked if
appellant used his mouth on her during that incident, she stated no, but then when
asked if appellant “[k]iss[ed” on [her] private parts,” she stated “yeah.” However,
she denied that appellant used his tongue during that incident.
{¶10} The State also introduced testimony from Mayerson Center forensic
interviewer, Cecilla Hicks; the victim’s brother, J.B.; the victim’s custodian, M.W.
(who the victim consistently referred to as her mother); and Detective Sergent
Vincent Antinore, who interviewed appellant after the initial report was made.
Highland App. No. 24CA15 6
Antinore testified that appellant told him “that he remembered an occasion waking
up and his face was laying on the thigh, right next to the vagina of [the victim] and
[the victim’s] clothes had been removed.” He testified appellant further stated that
“most of the incidents took place on Locust Road,” which Antinore understood to
be an acknowledgement that more than one incident had taken place, even though
appellant only described one incident. He further testified that appellant referred to
the incident as an “accident from hell.”
{¶11} Appellant testified on his own behalf at trial and denied any
wrongdoing. He testified that he was fibbing when he told the detective that he
woke up with his head on the victim’s leg, stating as follows: “She wasn’t in my
bed. But then after that when she said that, you know, that I was asleep and
everything, I figured that I could get her in trouble and say, she was naked in my
bed ….”
{¶12} The jury ultimately found appellant guilty of all three charges
contained in the indictment. The trial court sentenced appellant to a lifetime prison
term without the possibility of parole on count one, a prison term of ten years to
life on count two, and a prison term of ten years to life on count three, all to be
served consecutively. It is from the trial court’s final judgment that appellant now
brings his timely appeal, setting forth two assignments of error for our review.
Highland App. No. 24CA15 7
ASSIGNMENTS OF ERROR
I. BRUMMETT’S CONVICTION FOR COUNT THREE
OF RAPE WAS NOT SUPPORTED BY LEGALLY
SUFFICIENT EVIDENCE OR THE WEIGHT OF THE
EVIDENCE.
II. THE TRIAL COURT ERRED WHEN IT IMPOSED
CONSECUTIVE SENTENCES.
ASSIGNMENT OF ERROR I
{¶13} In his first assignment of error, appellant contends that his conviction
for rape under count three of the indictment was not supported by sufficient
evidence and was against the manifest weight of the evidence. The State counters
by arguing that the evidence presented at trial was sufficient to prove the element
of “sexual conduct,” which is the only element of the offense appellant appears to
challenge on appeal. The State further argues that the conviction was not against
the manifest weight of the evidence.
Standard of Review
{¶14} Because appellant challenges both the sufficiency of the evidence and
the manifest weight of the evidence, we initially set forth both standards of review.
{¶15} A claim of insufficient evidence invokes a due process concern and
raises the question of whether the evidence is legally sufficient to support the
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
syllabus; State v. Blevins,
2019-Ohio-2744, ¶ 18 (4th Dist.). When reviewing the
Highland App. No. 24CA15 8
sufficiency of the evidence, an appellate court's inquiry focuses primarily on the
adequacy of the evidence; that is, whether the evidence, if believed, could
reasonably support a finding of guilt beyond a reasonable doubt.
Id. at syllabus.
The standard of review is whether, after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential elements of
the offense beyond a reasonable doubt. E.g., Jackson v. Virginia,
443 U.S. 307,
319 (1979); State v. Jenks,
61 Ohio St.3d 259, 273 (1991).
{¶16} Furthermore, under the sufficiency of the evidence standard, a
reviewing court does not assess “whether the state's evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.”
Thompkins, supra, at 390 (Cook, J., concurring). Therefore, when reviewing a
sufficiency of the evidence claim, an appellate court must construe the evidence in
a light most favorable to the prosecution. See, e.g., State v. Hill, 75 Ohio St.3d
195, 205 (1996); State v. Grant,
67 Ohio St.3d 465, 477 (1993). A reviewing court
will not overturn a conviction on a sufficiency of the evidence claim unless
reasonable minds could not reach the conclusion the trier of fact did. State v.
Tibbetts,
92 Ohio St.3d 146, 162 (2001); State v. Treesh,
90 Ohio St.3d 460, 484
(2001).
Highland App. No. 24CA15 9
{¶17} “Although a court of appeals may determine that a judgment of a trial
court is sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence.” Thompkins, supra, at 387.
“The question to be answered when a manifest weight issue is raised is whether
‘there is substantial evidence upon which a jury could reasonably conclude that all
the elements have been proved beyond a reasonable doubt.’ ” State v. Leonard,
2004-Ohio-6235, ¶ 81, quoting State v. Getsy,
84 Ohio St.3d 180, 193-194 (1998),
citing State v. Eley,
56 Ohio St.2d 169 (1978), syllabus. A court that considers a
manifest weight challenge must “ ‘review the entire record, weigh the evidence and
all reasonable inferences, and consider the credibility of witnesses.’ ” State v.
Beasley,
2018-Ohio-493, ¶ 208, quoting State v. McKelton,
2016-Ohio-5735, ¶
328. However, the reviewing court must bear in mind that credibility generally is
an issue for the trier of fact to resolve. State v. Issa,
93 Ohio St.3d 49, 67 (2001);
State v. Murphy,
2008-Ohio-1744, ¶ 31 (4th Dist.). “ ‘Because the trier of fact sees
and hears the witnesses and is particularly competent to decide “whether, and to
what extent, to credit the testimony of particular witnesses,” we must afford
substantial deference to its determinations of credibility.’ ” Barberton v. Jenney,
2010-Ohio-2420, ¶ 20, quoting State v. Konya,
2006-Ohio-6312, ¶ 6 (2d Dist.), in
turn quoting State v. Lawson,
1997 WL 476684 (2d Dist. Aug. 22, 1997).
Highland App. No. 24CA15 10
{¶18} Thus, an appellate court will generally defer to the trier of fact on
evidence weight and credibility issues, as long as a rational basis exists in the
record for the fact-finder's determination. State v. Picklesimer, 2012-Ohio-1282, ¶
24 (4th Dist.); accord State v. Howard,
2007-Ohio-6331, ¶ 6 (4th Dist.) (“We will
not intercede as long as the trier of fact has some factual and rational basis for its
determination of credibility and weight.”). Accordingly, if the prosecution
presented substantial credible evidence upon which the trier of fact reasonably
could conclude, beyond a reasonable doubt, that the essential elements of the
offense had been established, the judgment of conviction is not against the
manifest weight of the evidence. Accord Eastley v. Volkman,
2012-Ohio-2179, ¶
12, quoting Thompkins, supra, at 387, quoting Black's Law Dictionary 1594 (6th
Ed.1990) (a judgment is not against the manifest weight of the evidence when “ ‘
“the greater amount of credible evidence” ’ ” supports it).
{¶19} Consequently, when a court reviews a manifest weight of the
evidence claim, a court may reverse a judgment of conviction only if it appears that
the fact-finder, when it resolved the conflicts in evidence, “ ‘clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” Thompkins, supra, at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983); accord
McKelton at ¶ 328.
Finally, a reviewing court should find a conviction against the manifest weight of
Highland App. No. 24CA15 11
the evidence only in the “ ‘exceptional case in which the evidence weighs heavily
against the conviction.’ ” Thompkins, supra, at 387, quoting
Martin, supra, at 175;
accord State v. Clinton,
2017-Ohio-9423, ¶ 166; State v. Lindsey,
87 Ohio St.3d
479, 483 (2000).
Legal Analysis
{¶20} Here, appellant challenges his conviction for rape under count three of
the indictment. He only argues that the State failed to prove one element of the
offense, in particular that “sexual conduct” occurred between himself and the child
during the timeframe specified in count three. He concedes that the victim testified
during direct examination that he had “kissed” her private parts during that
encounter, but he argues that she failed to testify that such conduct occurred upon
being cross-examined. He further argues that without penetration, no rape
occurred. In support of this argument, he cites to the victim’s testimony during
cross-examination indicating that although appellant put his penis close to her face
and touched other parts of her body with it, she denied that he touched her “down
there.”
{¶21} In response, the State contends that based upon the victim’s
testimony, “it is clear that Appellant engaged in the act of cunnilingus when he
used his lips to kiss V’s ‘private area.’ ” The State argues that the evidence
Highland App. No. 24CA15 12
presented at trial was legally sufficient to support the conviction for rape and
further, that the conviction was not against the manifest weight of the evidence.
{¶22} The record before us demonstrates that the jury found appellant guilty
of count three, which charged appellant with rape in violation of R.C.
2907.02(A)(1)(b), and which states as follows:
(A)(1) No person shall engage in sexual conduct with another
when any of the following applies:
…
(b) The other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
R.C. 2907.01 defines “sexual conduct” and states as follows:
“Sexual conduct” means vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between
persons regardless of sex; and, without privilege to do so, the
insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal
opening of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
The statute further defines “sexual activity” as follows: “ ‘Sexual activity’ means
sexual conduct or sexual contact, or both.”
{¶23} Although there is no statutory definition for cunnilingus, the Ohio
Jury Instructions define the term and state as follows: “ ‘Cunnilingus’ means a
sexual act committed with the mouth and the female sex organ.” 2 OJI-CR
507.02(A)(6). Multiple cases clarify and confirm that simply placing one’s mouth
Highland App. No. 24CA15 13
on a female’s genitals accomplishes the act of cunnilingus and penetration is not
required. See State v. Lynch, 2003-Ohio-2284, ¶ 86 (where the Supreme Court of
Ohio rejected an argument that penetration was required for cunnilingus to have
occurred, explaining that “[p]enetration is not required to commit cunnilingus.
Rather, the act of cunnilingus is completed by the placing of one’s mouth on the
female’s genitals”). See also State v. Coleman,
1987 WL 13252, *1 (1st Dist.
1987) (“… [W]e can find no authority which requires penetration of the female
sex organ by the mouth to establish cunnilingus. Therefore, in this case, the
showing of contact between the female sex organ and the mouth was sufficient to
establish cunnilingus.”); State v. Ramirez,
98 Ohio App.3d 388, 393 (3d Dist.
1994) (observing that courts have rejected arguments “that some penetration was
required to complete the act of cunnilingus” and agreeing with those holdings),
citing State v. Bailey,
78 Ohio App.3d 394, 396 (1st Dist. 1992) (“[W]e hold that
the law requires no further activity to constitute cunnilingus beyond the placing of
one’s mouth on the female’s vagina.”); State v. Younger,
2006-Ohio-296, ¶ 22 (8th
Dist.) (“The evidence in the case at bar demonstrates that the appellant engaged in
sexual conduct known as cunnilingus when he placed his mouth on the victim’s
vagina.”), reversed in part on other grounds in In re Ohio Criminal Sentencing
Statutes Cases,
2006-Ohio-3663, ¶ 7; State v. Goller,
2024-Ohio-5983, ¶ 53 (3d
Dist.) (“ ‘Penetration of a victim’s bodily orifice is not . . . required for
Highland App. No. 24CA15 14
“cunnilingus,” which involves licking or oral stimulation of the vulva.’ ”), quoting
State v. Brewer,
2004-Ohio-3572, ¶ 33 (2d Dist.).
{¶24} The victim herein testified as follows on direct examination regarding
an incident that occurred in appellant’s bedroom in 2021 when she was 11 years
old and in Mrs. Pollard’s class:
Q: And what do you remember happening?
A: He . . . so, we . . . me and my siblings were sleeping in his
room because we were watching a movie. And I was
sleeping between one of my sibling’s bed and his bed.
Q: And then what?
A: He got down there and started laying next to me.
Q: And what did he do to you?
A: He was trying to put his part like close to my face.
Q: And what did you do when he tried to put his part close to
your face?
A: I was just trying to get up.
Q: And when you are talking about his part, are you talking
about the part he pees from?
A: Yes.
Q: And at that time did he touch any of your parts with his
body?
A: He was touching up here where my chest is.
Q: Okay and then what happened?
Highland App. No. 24CA15 15
A: I was trying to get up but then he wasn’t letting me up.
Q: And then what happened next?
A: I told him to stop before I tell my mom.
Q: Did he rub his parts on you?
A: When he was coming up to me I could feel it like on my
leg and my stomach.
Q: And when you say you could feel it on your leg and
stomach, what could you feel?
A: The part where he pees from.
Q: And did anything come from that part?
A: The cum that was on me, which I didn’t know what that
was, so I asked my older brother.
Q: And what that, when . . . during this time when that was
happening, did he use his fingers or his mouth on you?
A: He was like kissing up on my body.
Q: He was what?
A: He was kissing up on my body.
Q: Okay, so did he use his mouth on your private parts?
A: No.
Q: Kiss on your private parts?
A: Yeah.
Highland App. No. 24CA15 16
Q: And when he kissed on your private parts did he use his
tongue?
A: No.
Q: And when you talk about your private parts, what part are
you talking about?
A: Down here.
Q: Down here, okay.
A. Um-hum.1
{¶25} The foregoing testimony establishes the victim testified that during
the incident in question, appellant “kissed” her private parts, which she separately
established meant her vaginal area. Although she did not repeat this testimony
during cross-examination, the transcript reveals that defense counsel did not ask
her that exact question, unlike the prosecutor. The overall tenor of the transcript
indicates that the victim tended not to volunteer information beyond what was
asked but rather appeared to consistently limit her answer to the specific questions
asked. Further, although the victim stated no in answer to the question whether
appellant used his mouth on her private parts, she then answered yes when asked if
appellant “kissed” her private parts but denied that he used his tongue on that
occasion.
1
Elsewhere in the victim’s testimony she clarified that “down here” meant “her area,” which was “[d]own where
[she] pees at.” She further confirmed on cross-examination that “down where [she] pees at” was her “vaginal area.”
Highland App. No. 24CA15 17
{¶26} Based upon the above-cited case law, this testimony, if believed by
the jury, was sufficient to establish the element of sexual conduct under the rape
charge. Further, we cannot conclude that appellant’s conviction was against the
manifest weight of the evidence. Despite the victim’s obvious inconsistency in her
testimony during the direct examination, the jury, as the trier of fact, was free to
accept or reject her version of events. Defense counsel had the opportunity to clear
up that inconsistency during cross-examination but elected not to do so, likely as a
matter of trial strategy so as not to draw attention to that damaging testimony.
{¶27} Importantly, the victim testified to four, possibly five, specific
incidents that occurred over the course of three to four years. Although the
prosecutor focused on these specific incidents, the victim stated that appellant
committed these offenses weekly, to the point that she even slept under her bed or
in her closet to try to hide from him. Focusing only on the particular incidents of
which the victim testified and eliminating from consideration the incident that
occurred when the victim was in Mrs. Pollard’s class, there is evidence that
appellant raped the victim via digital penetration twice and via performing
cunnilingus on her twice. As set forth above, the victim’s testimony reflects that
appellant typically raped her both digitally and orally during these incidents. Thus,
the evidence in the record supported charging appellant with additional counts of
rape beyond the three he was indicted for. See State v. McKinney, 2024-Ohio-
Highland App. No. 24CA15 18
4642, ¶ 90 (4th Dist.) (“Different types of rape committed within the same sexual
assault such as ‘vaginal intercourse, cunnilingus, and digital penetration constitute
separate crimes’ ‘with a separate animus[.]’ ”).
{¶28} We must be mindful that when charging defendants with crimes
inflicted upon children in situations where the abuse was ongoing over a long
period of time, “ ‘[a] precise time and date of an alleged offense are not ordinarily
essential elements.’ ” State v. Birt, 2013-Ohio-1379, ¶ 32 (12th Dist.), quoting
State v. Blankenburg,
2012-Ohio-1289, ¶ 43 (12th Dist.), in turn citing State v.
Sellards,
17 Ohio St.3d 169, 171 (1985). As further explained in Birt:
In sexual abuse cases involving children, it may be impossible to
provide a specific date. “The problem is compounded where the
accused and the victim are related or reside in the same
household, situations which often facilitate an extended period
of abuse. An allowance for reasonableness and inexactitude
must be made for such cases.” State v. Barnes, 12th Dist. No.
CA2010-06-009, 2011-Ohio-5226,
2011 WL 4790887, ¶ 12,
quoting State v. Elkins, 5th Dist. No. 2010-CA-104, 2011-Ohio-
3611, 2011 WL 2937313, ¶ 26. However, there are some
exceptions where dates and times are essential and the failure to
provide specific dates and times may prejudice the accused. One
such exception is where the accused asserts an alibi. State v.
Wagers, 12th Dist. No. CA2009-06-018, 2010-Ohio-2311,
2010
WL 2026779, ¶ 19. Likewise, where the age of the victim is an
element of the crime charged and the victim bordered on the age
required to make the conduct criminal, a specific date becomes
essential and the failure to provide one is more likely to prejudice
the accused. State v. Barnes, 12th Dist. No. CA2010-06-009,
2011-Ohio-5226,
2011 WL 4790887, ¶ 15.
Birt at ¶ 32.
Highland App. No. 24CA15 19
{¶29} As in Birt, we are confronted with neither situation in the case at bar.
Appellant did not assert an alibi, but rather defended against the charges by
asserting that the victim was lying. Further, all of the charges in the indictment
specified that the child was under the age of 13 at the time of the offenses and the
child’s testimony detailing the commission of 2 instances of rape by digital
penetration and 3 instances of cunnilingus all occurred well before her 13th
birthday. Thus, there was no concern that the child’s age had exceeded the age
limit set forth in the indictment. As such, the date of the offenses was not an
essential element.
{¶30} Taking all of the above into consideration and assuming arguendo that
the evidence offered to support count three was inconsistent, there was more than
enough evidence introduced by the State to support three counts of rape
perpetrated by appellant against the victim, a child of only nine years old when the
abuse began, understanding the difficulty in providing specific dates when abuse is
regular and ongoing over a period of years. Thus, having found no merit to
appellant’s arguments that his conviction for rape under count three was not
supported by sufficient evidence and was against the manifest weight of the
evidence, his first assignment of error is overruled.
Highland App. No. 24CA15 20
ASSIGNMENT OF ERROR II
{¶31} In his second assignment of error, appellant contends that the trial
court erred when it imposed consecutive sentences. Appellant argues that although
the trial court recited the necessary findings for imposing consecutive sentences in
the sentencing entry, it failed to make the necessary findings at the sentencing
hearing. The State contends the trial court made the necessary findings both
during the sentencing hearing and in the sentencing entry and further argues
appellant’s second assignment of error lacks merit. However, for the following
reasons, we agree with appellant’s argument and find that the trial court erred by
failing to make the necessary findings during the sentencing hearing and therefore
erred in imposing consecutive sentences. As a result, the consecutive sentences
imposed by the trial court are contrary to law.
Standard of Review
{¶32} When reviewing felony sentences, appellate courts apply the standard
set forth in R.C. 2953.08(G)(2). State v. Spencer, 2024-Ohio-59, ¶ 13 (4th Dist.).
See e.g. State v. Nelson,
2023-Ohio-3566, ¶ 63 (4th Dist.). R.C. 2953.08(G)(2)(a)
provides that “[t]he appellate court's standard for review is not whether the
sentencing court abused its discretion.” Instead, the statute authorizes appellate
courts to “increase, reduce, or otherwise modify a sentence” “if it clearly and
convincingly finds either of the following:”
Highland App. No. 24CA15 21
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶33} The Supreme Court of Ohio has recognized that R.C. 2953.08(G)(2)
means that appellate courts ordinarily “ ‘defer to trial courts’ broad discretion in
making sentencing decisions.’ ” State v. Gwynne, 2023-Ohio-3851, ¶ 11, quoting
State v. Rahab,
2017-Ohio-1401, ¶ 10; see also State v. Marcum,
2016-Ohio-1002,
¶ 23 (appellate court's review of whether sentence is clearly and convincingly
contrary to law under R.C. 2953.08(G) is deferential to sentencing court); State v.
Collins,
2024-Ohio-2891, ¶ 22 (4th Dist.). Thus, R.C. 2953.08(G)(2) provides that
an appellate court may increase, reduce, or otherwise modify consecutive
sentences only if the record does not “clearly and convincingly” support the trial
court's R.C. 2929.14(C)(4) consecutive-sentence findings. The clear-and-
convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the
negative.
Gwynne, supra, at ¶ 13. Moreover, “clear and convincing evidence” is
“that measure or degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.” Cross
v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
Highland App. No. 24CA15 22
Legal Analysis
{¶34} Appellant argues that the trial court failed to make the necessary
consecutive sentence findings during the sentencing hearing. More specifically,
appellant contends that although the trial court made the first two findings required
under R.C. 2929.14(C)(4), it failed to make the third finding required by R.C.
2929.14(C))(4)(b).
{¶35} In general, a statutory presumption exists in favor of concurrent
sentences pursuant to R.C. 2929.41(A) and R.C. 2929.14(C)(4) governs the
imposition of consecutive terms of imprisonment. Collins, supra, at ¶ 23. To
justify the imposition of consecutive terms of imprisonment, “a trial court must
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry, but the court has no obligation to
state reasons to support its findings.” State v. Blair,
2019-Ohio-2768 ¶ 52 (4th
Dist.), citing State v. Bonnell,
2014-Ohio-3177, syllabus. This Court has explained
the findings required to support the imposition of consecutive sentences as follows:
“Under the tripartite procedure set forth in R.C. 2929.14(C)(4),
prior to imposing consecutive sentences a trial court must find
that: (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender; (2) consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public; and (3) that one of three circumstances specified in the
statute applies.”
Highland App. No. 24CA15 23
(Emphasis added.) Cottrill at ¶ 14, and Collins, ¶ 24, quoting R.C.
2929.14(C)(4)(a)-(c).
{¶36} Further, as we outlined in Cottrill, and more recently in Collins, the
three circumstances are:
“(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.”
(Emphasis added.) Cottrill at ¶ 14, and Collins, ¶ 24, quoting R.C.
2929.14(C)(4)(a)-(c).
{¶37} Here, upon imposing consecutive sentences during the sentencing
hearing, the trial court stated as follows:
The Court is ordering [the sentences] be served consecutively to
one another. The reason for that is that the Court feels that the
harm in this case is so great, that it would not be adequately [sic]
reflect the seriousness of the conduct and the harm that has been
caused to this victim. And it is also for the protection of the
public. These sentences are harsh, they’re the maximum but
they’re mandated, there is no other sentence. And it’s my intent
Highland App. No. 24CA15 24
to make sure that you spend the rest of your life in prison because
I think that is the only way that other children will be protected.
Because I can tell you that I have yet to see a case in my 48 and
a half years where the offender got caught the first time or the
last time. You know, offenders that prey on children, they
continue if they’re not . . . and the only way you stop them is to
put them in prison. And so, for the protection of the public, I
think it is necessary, I think it is again the sentence, the harm is
so great to this victim and to the public in general, because of
having our children victimized, the public suffers, too. And the
sentence is not disproportionate to that harm. Quite honestly,
there is no sentence that could compensate her for the harm that
you’ve caused.
Thus, although the trial court made the required findings under R.C. 2929.14(C)(4)
regarding the need to protect the public from future crime or punish the offender,
as well as that consecutive sentences were not disproportionate to the seriousness
of the offender’s conduct and the danger the offender poses to the public, it failed
to make a finding regarding which factor, either (a), (b), or (c) under R.C.
2929.14(C)(4), also applied.
{¶38} In its sentencing entry, the trial court stated that factor (b) applied,
which provides as follows:
At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
However, the trial court made no such finding during the sentencing hearing itself.
Highland App. No. 24CA15 25
{¶39} Based upon the foregoing, we conclude that despite including the
necessary findings in the sentencing entry, the trial court failed to make the
findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences
during the sentencing hearing. As a result, the consecutive sentences imposed by
the trial court are contrary to law. See State v. Farmer, 2024-Ohio-6063, ¶ 69 (4th
Dist.), citing State v. Conn,
2023-Ohio-2669, ¶ 29 (4th Dist.). Accordingly, we
sustain appellant’s second assignment of error, vacate appellant’s sentence, and
remand the case for the limited purpose of resentencing him.
Id.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CAUSE
REMANDED.
Highland App. No. 24CA15 26
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, VACATED
IN PART, AND CAUSE REMANDED and costs be assessed to appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Highland County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration
of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of appellate Procedure.
Hess, J. and Wilkin, J., concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
